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In Re Carrier Iq

September 20, 2012

IN RE CARRIER IQ, INC. CONSUMER PRIVACY LITIGATION


The opinion of the court was delivered by: Edward M. Chen Judge

[Additional Counsel listed on Signature Page]

STIPULATED PROTECTIVE ORDER

[This Document Relates to All Cases] 21 22 23 24 25 26 27 28

1. PURPOSES AND LIMITATIONS

Disclosure and discovery activity in this action are likely to involve production of 3 confidential, proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 5

Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 6 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 7 all disclosures or responses to discovery and that the protection it affords from public disclosure 8 and use extends only to the limited information or items that are entitled to confidential treatment 9 under the applicable legal principles. The parties further acknowledge, as set forth in Section 10 13.3, below, that this Stipulated Protective Order does not entitle them to file confidential 11 information under seal; Civil Local Rule 79-5 and General Order 62 set forth the procedures that 12 must be followed and the standards that will be applied when a party seeks permission from the court to file material under seal.

2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 17

2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is 18 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 19 of Civil Procedure 26(c). 20

2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 21 well as their support staff). 22

2.4 Designating Party: a Party or Non-Party that designates information or items that 23 it produces in disclosures or in responses to discovery as "CONFIDENTIAL" or 24 "CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" or "RESTRICTED CONFIDENTIAL -- 25 SOURCE CODE." 26

2.5 Disclosure or Discovery Material: all items or information, regardless of the 27 medium or manner in which it is generated, stored, or maintained (including, among other things, 28 testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter. 2

2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 3 the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or 4 as a consultant in this action, (2) is not a current employee of a Party or of a Party's competitor, 5 and (3) at the time of retention, is not anticipated to become an employee of a Party or of a 6 Party's competitor. 7

2.7 "CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" Information or Items: 8 extremely sensitive "Confidential Information or Items" the disclosure of which to another Party 9 or Non-Party would create a substantial risk of serious harm that could not be avoided by less 10 restrictive means. 11

2.8 "RESTRICTED CONFIDENTIAL -- SOURCE CODE" Information or Items: extremely sensitive "Confidential Information or Items" representing computer code and associated comments and revision histories, formulas, engineering specifications, or schematics that define or otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means. 17

2.9 House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 19

2.10 Non-Party: any natural person, partnership, corporation, association, or other legal 20 entity not named as a Party to this action. 21

2.11 Outside Counsel of Record: attorneys who are not employees of a party to this 22 action but are retained to represent or advise a party to this action and have appeared in this action 23 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 24

2.12 Party: any party to this action, including all of its officers, directors, employees, 25 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 26

2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 28

2.14 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 2 organizing, storing, or retrieving data in any form or medium) and their employees and 3 subcontractors. 4

2.15 Protected Material: any Disclosure or Discovery Material that is designated as "CONFIDENTIAL," or "CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" or "RESTRICTED 6 CONFIDENTIAL -- SOURCE CODE." 7

2.16 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 9

3. SCOPE 10

The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 12 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

However, the protections conferred by this Stipulation and Order do not cover the following information: (a) any information that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 17 a result of publication not involving a violation of this Order, including becoming part of the 18 public record through trial or otherwise; and (b) any information known to the Receiving Party 19 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 20 obtained the information lawfully and under no obligation of confidentiality to the Designating 21 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 22

4. DURATION 23

Even after final disposition of this litigation, the confidentiality obligations imposed by 24 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 25 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 26 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 27 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 28 including the time limits for filing any motions or applications for extension of time pursuant to applicable law. 2

5. DESIGNATING PROTECTED MATERIAL 3

4 or Non-Party that designates information or items for protection under this Order must take care 5 to limit any such designation to specific material that qualifies under the appropriate standards. 6

5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party

To the extent it is practical to do so, the Designating Party must designate for protection only 7 those parts of material, documents, items, or oral or written communications that qualify-so that 8 other portions of the material, documents, items, or communications for which protection is not 9 warranted are not swept unjustifiably within the ambit of this Order. 10

11 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 12 unnecessarily encumber or retard the case development process or to impose unnecessary expenses and burdens on other parties) expose the Designating Party to sanctions.

If it comes to a Designating Party's attention that information or items that it designated for protection do not qualify for protection at all or do not qualify for the level of protection initially asserted, that Designating Party must promptly notify all other parties that it is 17 withdrawing the mistaken designation. 18

Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 21 designated before the material is disclosed or produced. 22

24 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 25

ONLY" or "RESTRICTED CONFIDENTIAL -- SOURCE CODE" to each page of a document 27 that contains protected material. 28

STIPULATED PROTECTIVE ORDER 4 CASE NO. 3:12-md-02330-EMC

Mass, indiscriminate, or routinized designations are prohibited. Designations that are

5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise stipulated or ordered, 20

Designation in conformity with this Order requires:

(a) for information in documentary form (e.g., paper or electronic documents, but Party affix the legend "CONFIDENTIAL" or "CONFIDENTIAL -- OUTSIDE COUNSEL 26

A Party or Non-Party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which 2 material it would like copied and produced. During the inspection and before the designation, all 3 of the material made available for inspection shall be deemed "CONFIDENTIAL -- OUTSIDE 4 COUNSEL ONLY." After the inspecting Party has identified the documents it wants copied and 5 produced, the Producing Party must determine which documents, or portions thereof, qualify for 6 protection under this Order. Then, before producing the specified documents, the Producing 7

COUNSEL ONLY" or "RESTRICTED CONFIDENTIAL -- SOURCE CODE" to each page of a 9 document that contains Protected Material. 10

Party must affix the appropriate legend ("CONFIDENTIAL" or "CONFIDENTIAL -- OUTSIDE 8

(b) for testimony given in deposition or in other pretrial or trial proceedings, that the Designating Party identify on the record, before the close of the deposition, hearing, or other 12 proceeding, all protected testimony and specify the level of protection being asserted. When it is impractical to identify separately each portion of testimony that is entitled to protection and it appears that substantial portions of the testimony may qualify for protection, the Designating Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right to have up to 21 days to identify the specific portions of the testimony as to which 17 protection is sought and to specify the level of protection being asserted. Only those portions of 18 the testimony that are appropriately designated for protection within the 21 days shall be covered 19 by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may 20 specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the 21 entire transcript shall be treated as "CONFIDENTIAL" or "CONFIDENTIAL -- OUTSIDE 22

Parties shall give the other parties notice if they reasonably expect a deposition, hearing or 24 other proceeding to include Protected Material so that the other parties can ensure that only 25 authorized individuals who have signed the "Acknowledgment and Agreement to Be Bound" 26

(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 27 shall not in any way affect its designation as "CONFIDENTIAL" or "CONFIDENTIAL -- 28

COUNSEL ONLY" or "RESTRICTED CONFIDENTIAL -- SOURCE CODE." 23 OUTSIDE COUNSEL ONLY" or "RESTRICTED CONFIDENTIAL -- SOURCE CODE."

Transcripts containing Protected Material shall have an obvious legend on the title page 2 that the transcript contains Protected Material, and the title page shall be followed by a list of all 3 pages (including line numbers as appropriate) that have been designated as Protected Material and 4 the level of protection being asserted by the Designating Party. The Designating Party shall 5 inform the court reporter of these requirements. Any transcript that is prepared before the 6 expiration of a 21-day period for designation shall be treated during that period as if it had been 7 designated "CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" in its entirety unless otherwise 8 agreed. After the expiration of that period, the transcript shall be treated only as actually 9 designated. 10

(c) for information produced in some form other than documentary and for any other 11 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 12 or containers in which the information or item is stored the legend "CONFIDENTIAL" or SOURCE CODE." If only a portion or portions of the information or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the level of protection being asserted. 17

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 18 designate qualified information or items does not, standing alone, waive the Designating Party's 19 right to secure protection under this Order for such material. Upon timely correction of a 20 designation, the Receiving Party must make reasonable efforts to assure that the material is 21 treated in accordance with the provisions of this Order. 22

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 23

6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 24 confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality 25 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 26 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 27 challenge a confidentiality designation by electing not to mount a challenge promptly after the 28 original designation is disclosed.

2 process by providing written notice of each designation it is challenging and describing the basis 3 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 4 notice must recite that the challenge to confidentiality is being made in accordance with this 5 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 6 good faith and must begin the process by conferring directly (in voice to voice dialogue; other 7 forms of communication are not sufficient) within 14 days of the date of service of notice. In 8 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 9 designation was not proper and must give the Designating Party an opportunity to review the 10 designated material, to reconsider the circumstances, and, if no change in designation is offered, 11 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 12 stage of the challenge process only if it has engaged in this meet and confer process first or establishes that the Designating Party is unwilling to participate in the meet and confer process in a timely manner.

6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, the Designating Party shall file and serve a motion to retain confidentiality under 17 Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62, if 18 applicable) within 21 days of the initial notice of challenge or within 14 days of the parties 19 agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. 20

Each such motion must be accompanied by a competent declaration affirming that the movant has 21 complied with the meet and confer requirements imposed in the preceding paragraph. Failure by 22 the Designating Party to make such a motion including the required declaration within 21 days (or 23

14 days, if applicable) shall automatically waive the confidentiality designation for each 24 challenged designation. In addition, the Challenging Party may file a motion challenging a 25 confidentiality designation at any time if there is good cause for doing so, including a challenge to 26 the designation of a deposition transcript or any portions thereof. Any motion brought pursuant 27 to this provision must be accompanied by a competent declaration affirming that the movant has 28 complied with the meet and confer requirements imposed by the preceding paragraph.

STIPULATED PROTECTIVE ORDER 7 CASE NO. 3:12-md-02330-EMC

6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose 3 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 4 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 5 file a motion to retain confidentiality as described above, all parties shall continue to afford the 6 material in question the level of protection to which it is entitled under the Producing Party's 7 designation until the court rules on the challenge. 8

7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 10 or produced by another Party or by a Non-Party in connection with this case only for prosecuting, 11 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only 12 to the categories of persons and under the conditions described in this Order. When the litigation has been terminated, a Receiving Party must comply with the provisions of Section 14 below

(FINAL DISPOSITION).

Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 17

18 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 19 disclose any information or item ...


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